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Racial bias is built into the law


:TC WITH ALL the hoopla about affirmative action, the public is scarcely aware of a federal program that discriminates against blacks. You could look it up -- but not under the "affirmative action" heading. Instead, check out the Anti-Drug Abuse Act of 1986, which mandates a minimum 10-year sentence for anyone convicted of selling 50 grams or more of crack cocaine or possessing that amount with the intent to sell. By contrast, dealers in powder cocaine have to be convicted of selling 100 times the amount of crack to trigger the same penalty.

Crack is nearly pure cocaine suitable for smoking. Crack produces a quicker, more intense but shorter high than nasally infused powder cocaine. (If injected, powder cocaine has an effect similar to crack.)

Those who trade in cocaine, whether crack or powder, are profit-seeking entrepreneurs. Some use, most don't, not even most street dealers. Present penalties punish mostly lower-level crack dealers, who are easier to catch and convict. The higher one's position in the marketing chain, the less vulnerable one is to detection and arrest.

Powder cocaine is preferred by middle- and upper-class users, most of them white. Crack is marketed more heavily in minority, especially black, communities. By being 100 times tougher on crack dealers, we jam our prisons with small-time vendors and addicts, offer big-time powder cocaine merchants a break and produce exceptional racial disparity. Does that make sense?

A study for the Bureau of Justice Statistics by Douglas C. McDonald and Kenneth E. Carlson looked at sentences for crack cocaine dealing between Jan. 20, 1989, and June 20, 1990, after full implementation of the federal sentencing guidelines. The average sentence of blacks and whites differed substantially: 102 months vs. 74 months -- a 37-percent spread. The maximum sentences for blacks were 41 percent longer than those for whites: an average 71 months vs. 50 months. The authors do not blame the difference on discrimination by trial judges, but attribute it largely to the 100-to-1 sentencing distinction between crack and powder cocaine.

The law mandating this ratio is absurd, foolish and outrageous. It is absurd because it punishes retail crack dealers with far longer sentences than apply to the wholesalers who supply them with the same amount of the drug. It is foolish because it is hardest on the lowliest dealers who are most easily replaceable. And it is outrageous because the federal circuit courts have rejected equal protection, due process or any other constitutional arguments challenging the law.

The courts say that despite the association between black and crack and white and powder, and the disproportionately adverse impact of the law on blacks, Congress showed no racial animus in passing the law. Perhaps Congress didn't understand the disparate impact of the law in 1986. Now Congress should know, and if attempts to give the law more balance are voted down, black defendants will have a stronger constitutional argument.

After extensive study, the U.S. Sentencing Commission published a report in February strongly criticizing the congressional approach to sentencing cocaine offenders. It points out the anomaly in the 100-to-1 ratio: Retail crack dealers are given longer sentences than the wholesale distributors who supply them with the powder cocaine to produce their crack. Recognizing that crack and powder cocaine are pharmacologically the same, the report advises that the 100-to-1 ratio cannot withstand scientific scrutiny and concludes that it has had a disparate, prejudicial impact on blacks.

Despite the commission's report, the U.S. Justice Department is urging Congress to maintain these disparate sentencing practices. U.S. Attorney General Janet Reno says that equalizing penalties for equal amounts of crack and powder cocaine would "fail to reflect the harsh and terrible impact of crack on communities across America." The attorney general, an ex-officio member of the Sentencing Commission, attended some of the hearings. She is exceptionally intelligent and must know that the disparate penalties have scarcely solved the drug problems in our inner cities. One has to wonder how she could have reached that conclusion. Might it have to do with an election scheduled for 1996, and an administration that needs to show that it is tough on drugs?

Jerome H. Skolnick teaches at the University of California, Berkeley's School of Law. He testified before the U.S. Sentencing Commission in 1993.

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